A Brutally Honest Confrontation with the ICC’s Past: Thoughts on ‘The Prosecutor and the President’

(Photo: Jerry Lampen / Reuters)

(Photo: Jerry Lampen / Reuters)

In the world of international justice, it’s often said that states and societies must confront the past in order to move forward. But the same is true of the International Criminal Court (ICC): the institution needs to learn from its (very) shaky first decade. During that time, the ICC was put on the map, became an entrenched feature of global politics, and altered the way we think about the appropriate responses to mass atrocities and collective political violence. None of those achievements should be underestimated. But a string of controversies and unnecessary failures always seemed to follow the ICC. Trials narrowly avoided being thrown out by judges. Staff were wrongfully dismissed. Cases collapsed under weak evidence. The Court demonstrated a bias towards both major Western powers as well as despots.

Many observers and insiders believe that one person is chiefly responsible for these failures and near-misses: the Court’s first Prosecutor, Luis Moreno-Ocampo. This is also the message of a hard-hitting feature New York Times special report by James Verini into the ICC’s foray into Kenya, an intervention spearheaded by Moreno-Ocampo but whose goal of accountability for the 2007/08 post-election violence was ultimately shattered by a fatal combination of institutional ineptitude and political interference in the cases. These failures are lessons that the ICC has, and must continue, to learn from. Every indication suggests that it is doing so.

I highly encourage all readers to check out Verini’s account as well as Kate Cronin-Furman’s brilliant, funny, and insightful ‘live-blogging’ of the article. Verini’s piece should be read in full, but I thought it was worth posting a few highlights and some thoughts (in bold).

Alex Whiting, a onetime federal prosecutor in Boston who became Moreno-Ocampo’s prosecutions coordinator, told me the Kenyatta case “was like trying to prosecute an organized-crime case without the tools the Department of Justice uses to prosecute organized crime” — though, for this reason, Moreno-Ocampo’s temperament was an asset. “You have to have a big ego, because you don’t have much else.”

But Moreno-Ocampo himself may have been the greatest obstacle to the court’s success, members of his staff told me. They didn’t question his devotion — he often worked seven days a week, closely managing every case — but increasingly they questioned his judgment, which seemed always caught between that ego and his idealism. He inspired fierce admiration and dislike, sometimes in the same people.

There are different types of prosecutors and Moreno-Ocampo appears to have been a charasmatic but controlling leader who put his views and himself at the forefront of the Court’s work. In UN terms, he was more of a general than a secretary. While doing research in northern Uganda, I recall being told that many of the victims and survivors of violence by the Lord’s Resistance Army (LRA), initially believed that Moreno-Ocampo was called “ICC”. This blurb also reminded me of comments by Jean Ping when he was African Union Commission chairperson: “we are not against the International Criminal Court. What we are against is Ocampo’s justice — the justice of a man.” Many who initially dismissed Ping’s comments as cynical then, certainly wouldn’t do so now.

And while it was true that the court’s small budget limited the size of his investigations, he was, some say, already more interested in prominence than evidence. A former court attorney told me: “He would see the leader of a state and say: ‘There must be evidence out there. Go get it for me.’ ”

The investigation in Congo began calamitously. Bernard Lavigne, formerly a French domestic prosecutor, became Moreno-Ocampo’s first lead investigator in Congo. “We accumulated a lot of information about one militia,” Lavigne told me. “Then suddenly, because of a political decision by Luis or his political committee, we were obliged to change our planning and our investigative work and concentrate on a new target. It was completely crazy. … We put in danger a lot of people.” The case Moreno-Ocampo brought against Lubanga, for recruiting child soldiers, “barely scratched the surface of the conflict,” Paul Seils, the first director of Moreno-Ocampo’s preliminary-examination unit, says. Moreno-Ocam­po removed the lead attorney weeks before the trial commenced and clashed with the presiding justice, who accused him of trying to undermine the judiciary and pervert the Rome Statute.

It is exceedingly rare to find such forthright commentary about the ICC from former staff in the public. But this chimes with what I have heard for years now. Despite the best efforts of investigators (many of whom eventually resigned), the ICC built poor cases, cases that were so weak that they were virtually bound to fail unless someone delivered the prosecution a Hail Mary. Sometimes it worked (Lubanga, Bemba), and sometimes it didn’t (every Kenya case relating to the post-election violence). In many ways, it seems that under Moreno-Ocampo, the ICC forgot that it was actually a court (purposely perhaps — see final comments below) and, instead, saw itself as a kind of justice-y public relations pulpit. Reading these quotes always makes me wonder what would happen if Sudanese President Omar al-Bashir actually turned up at The Hague to face genocide charges. How strong (or weak) is that case?

It’s really important to highlight and stress, as the piece does implicitly, that the views and well-formed opinions of ICC investigators were overridden by Moreno-Ocampo. In a similar vein, you would have to think that when the former Chief Prosecutor met with Ugandan President Yoweri Moseveni to announce a referral of the LRA to the ICC, he must have been told it would show a bias towards Uganda. He did it anyways. The crucial lesson here is that the poor investigations and poor decisions made in the Office of the Prosecutor were not growing pains or mistakes. They were calculated decisions by Moreno-Ocampo himself, often against the advice of those working closely with him.

The good news is that, under new Prosecutor Fatou Bensouda, the ICC seems to have learned its lessons and now ensures that cases are as trial ready as possible when arrest warrants are initially requested. We are starting to see the fruits of this much more patient and much less cavalier strategy.

There was a gulf of understanding between the court and Kenya, one Moreno-Ocampo, whose political guile was undercut by his political tone-deafness, never quite grasped. The court’s very mission involves trying atrocities that stem from cultural conflicts whose nuances its lawyers and judges, from their remove in The Hague, can’t hope to fully appreciate. “I’m not at all sure that international courts really are set up to understand the realities of the conditions they’re investigating,” Paul Seils, of Moreno-Ocampo’s preliminary-examination unit, told me.

I could not agree more with Seils’ comments. They’re spot on. As I argue in my new book (sorry for the shameless self-promotion!), ICC interventions often adversely affect our understanding of the causes and dynamics of conflicts by portraying political violence within simplistic frameworks of ‘good’ and ‘evil’. The point many make is that this is unhelpful for resolving wars. I would add that it can also be unhelpful for achieving justice as well. 

The I.C.C. chief prosecutor’s term is nine years, and in 2012 Moreno-Ocampo left the court. “For me, it was an honor and a pleasure to serve the Kenyan people,” he said in his final news conference. The Kenya cases were important to him personally, “to do justice for the past” and “to be sure that the next elections are peaceful.”

It seems misplaced, if not simply pompous, to claim that Moreno-Ocampo “served” the Kenyan people. No justice has been done for the past. Every case relating to post-election violence in the country collapsed and Kenya has shown no interest in prosecuting the violence itself.

It seems obvious that, without the ICC, Kenyatta and Ruto wouldn’t have ran for President and Vice President on the same ticket. Moreno-Ocampo is right in arguing that the Jubilee Alliance almost surely prevented another round of post-election violence in 2013. But it also seems unwise to constantly make this case. If Kenya experiences violence during or after the 2017 elections, for which there are already troubling signs, is the ICC’s deterrence effect broken? What will Moreno-Ocampo say then? That such violence is due to the collapse of the cases? There’s a bit too much cherry-picking of story-lines here.

Moreno-Ocampo now divides his time between Buenos Aires and New York, where he practices at the firm Getnick & Getnick. After a decade in the spotlight, he has disappeared from view. Today it is hard to find anyone working in international justice to speak well of him. “He rushed into something in the belief it would give him publicity and credibility,” Cherif Bassiouni, an international lawyer and one of the drafters of the Rome Statute, told me of the Kenyatta case. “Instead he created a now almost impossible situation which has discredited the court.”

And… Moreno-Ocampo also works for one of the biggest tobacco companies in the world, along with Bassiouni. Which is just awful.

The message a case sends, the shadow of the court — that was the goal. The problem with courts, Moreno-Ocampo told me, is they “believe the trials are the most important things. No. The most important thing is the prevention of crime.” He had set out to prevent future political violence in Kenya, and in this sense at least, the Kenyatta case was a success. “The suspect became president. But there was no violence in the elections.”

It is beyond me that Moreno-Ocampo can depreciate the importance of trials to a court. Sure, the ICC is unique. It’s an international court and an international institution. It has to do both politics and law and live at the nexus of both. The Court’s shadow is incredibly important and widely recognized as such. But let’s face it: whatever else it can achieve, the ICC will never be a successful institution without successful trials. Perhaps more than anything, Moreno-Ocampo’s view on the matter is indicative of his tenure and its record.

This story has involved a number of remarkable, controversial, and dramatic turns. For more, see:

A Comment In Defence of Luis Moreno-Ocampo
Kenya’s President Rips into New York Times Article Largely Favourable to Him
The New York Times Shoots Back, Won’t Apologize to Kenyatta for ICC Story
As New York Times – Kenya Controversy Continues, Kenyatta Suspends Four Staff
It Continues… Kenyatta’s (Suspended) Communications Staff Threatens to Sue New York Times

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About Mark Kersten

Mark is a researcher, consultant and teacher based at the Munk School of Global Affairs in Toronto, Canada. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.
This entry was posted in International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC, Luis Moreno-Ocampo. Bookmark the permalink.

3 Responses to A Brutally Honest Confrontation with the ICC’s Past: Thoughts on ‘The Prosecutor and the President’

  1. el roam says:

    Thanks Mark for that interesting post . I must confess , that I disagree with that assumption of yours :

    ” ……..ICC interventions often adversely affect our understanding of the causes and dynamics of conflicts by portraying political violence within simplistic frameworks of ‘good’ and ‘evil’. The point many make is that this is unhelpful for resolving wars. I would add that it’s actually unhelpful for achieving justice as well. ”

    One should not forget :

    This is a criminal court , international of course !! yet , criminal !! criminal , as in national , means above all :

    Personal , individual liability ( Article 25(1) to the Rome statute ) . So , politics , must be reduced , to its right size . When dealing with horrors , or clear atrocities , extending let alone , far beyond , reasonable , and even , reckless conduct of war per se , political context , doesn’t have too much meaning .

    In fact, the ” Roman lawmaker ” has recognized it, deliberately, here I quote, Article 33 to the Rome statute:

    ” Article 33
    Superior orders and prescription of law

    1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

    (a) The person was under a legal obligation to obey orders of the Government or the superior in question;

    (b) The person did not know that the order was unlawful; and

    (c) The order was not manifestly unlawful.

    2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.”

    End of quotation :

    In such, even in terms of public opinion, and strategy, it would be better for the court, to concentrate (like the current prosecutor does basically) upon:

    primeval and crazy Horrors , abuse of helpless and vulnerable populations, genocides, crimes against humanity ,all deviating from reasonable conduct of war , and so: trying to attract, more states to join the Rome statute, especially, the superpowers, fearing limitations or over restrain upon their armies and soldiers, finally , must be backed up by them , and all , while anyway , the prosecutor ,is constantly , falling short of resources .

    Thanks

  2. Wanda Boker says:

    I worked for Prosecutor Moreno-Ocampo as his outreach advisor from 2003-2004 and later founded Interactive Radio for Justice, an outreach project which operated where the OTP investigated between 2005-2011. I agree completely with Paul Seils when he says “I’m not at all sure that international courts really are set up to understand the realities of the conditions they’re investigating,” but you are mistaken when you put the blame for that squarely on the shoulders of Moreno-Ocampo. What I saw consistently over the years I worked in and with the OTP is that investigators, prosecutors, colleagues in the registrar…tried do to their assigned work as they would have in their home country environment, without understanding just how much they needed to change in order to be effective working at the ICC, particularly in regions where the Court investigates. I can’t speak for Kenya because I didn’t work there, but in DRC (Ituri and Kivus) and RCA and Uganda, ICC teams would try to work while maintaining complete isolation from the local communities. The reason why cases were weak was because investigators relied too heavily on local informants because they didn’t go into neighborhoods, IDP camps, demobilization camps etc. themselves to understand where they were and who they were dealing with. If you don’t work in the community, don’t socialize and live there and build trusting relationships there, but only pay someone to bring you people to speak with from ethnic group Z…..how in the world do you know if you’re really talking with people from ethnic group Z, and not from group Y? That’s not Moreno-Ocampo’s fault. It took five years of him insisting, to finally be allowed (because of security concerns)to visit Ituri and speak directly with an unrestricted (meaning anyone interested in coming to the meeting could come) public meeting which we organized and broadcast over community radio stations. The chief defense lawyer for the Lubanga case was also invited to the meeting and she fielded questions as well, it was clear that she knew the terrain, because she could do her job with minimal restrictions, much better than the entire OTP contingent combined. I knew when ICC teams were in town, from any branch of the Court (save for the defense teams), because they were only allowed to eat in two places in town, only allowed to drive on a couple of main roads and spent their days in an air conditioned office within the guarded MONUC (later MONUSCO) compound. Their outreach teams would visit our radio partners to ask if they could speak with our focus groups because they didn’t have the local contacts to develop their own. I write this because it seems too easy to critique the ICC by targeting a personality who made people uncomfortable – Moreno Ocampo was not the reliable conventional prosecutor true, but it’s incorrect to blame all of the weaknesses of the ICC on him because he didn’t play by the same rules that a Chief Prosecutor would play in Canada, for example. He couldn’t play by the same rules at the ICC and he was the first in his position, he was exploring ways to approach his challenge to end impunity globally for the crimes under the Courts’ jurisdiction with no guidelines that seemed sufficient. His ideas about networks and creating cultures of deterrence were well worth trying, and the failures weren’t necessarily failures because they were bad ideas, there were a lot of structural and personality driven obstruction which had nothing to do with Moreno-Ocampo, that all but guaranteed failure in many situations.. It didn’t help matters at all to have lawyers and investigators saying “but I wasn’t expected to do that in the UK (Belgium, Canada, etc) and I don’t want to try it here” or the Registrar or the UN saying “you can not investigate without an entourage of vehicles, without notifying all UN , local military and local police beforehand”…..My point is if you’re going to write a frank report on the failings of the Court you really do need to look beyond your thinly veiled eagerness to discredit Moreno-Ocampo.

    • Mark Kersten says:

      Dear Wanda,

      Many thanks for this insightful and earnest comment. It’s greatly appreciated.

      I think you are right, and I don’t think I have ever shied away from the structural impediments facing the ICC. I would argue, in fact, that this site has covered these broader issues far more than the role of Moreno-Ocampo in the Court’s failures (or successes for that matter). This piece is not a personality attack but an assessment of criticism levied by insiders named in Verini’s story. It is a response to an article I believe to be important and which highlights the fact that Moreno-Ocampo did not navigate those limitations well or effectively and that some of his decisions (which are his and not about wider structural issues) hurt the institution. I agree with you, however, that a true record of the Court needs to consider all of the reasons for the ICC’s troubles. I do believe, however, the chief Prosecutor is a significant reason and one that deserves well-researched attention and measured scrutiny.

      That being said, I hope you don’t mind if I post your comment as a blog post in and of itself so that it is read by our readers. Your view point is invaluable and important and deserves to be highlighted.

      Best,

      Mark

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